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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2000-735

THE STATE OF NEW HAMPSHIRE

v.

JAMES HALL

Argued: May 8, 2002

Opinion Issued: September 30, 2002

Philip T. McLaughlin, attorney general (Jonathan V. Gallo, attorney, on
the brief and orally), for the State.

Richard E. Samdperil, assistant appellate defender, of Concord, by brief and
orally, for the defendant.

Nadeau, J. The defendant, James Hall, appeals his conviction in Superior Court (Smith,
J.) of second-degree murder. See RSA 630:1-b, I (a) (1996). We reverse and remand.

The record supports the following facts. The defendant and his mother lived together in
Concord. During an argument on April 15, 1999, the defendants mother repeatedly
insulted him. Eventually, the defendant lunged at his mother, and strangled her until she
died. He kept her body in their apartment for approximately three weeks, at first in the
bathtub and later in the refrigerator. He then placed the body in a trash barrel, sealed
it with tape and left the barrel on the side of the road in another town. Soon after, he
left New Hampshire, settling in a religious commune in Maine where he was eventually
located and arrested. The defendant was indicted on one count of first-degree murder.

Because the defendant admitted to killing his mother, the sole issue at trial was the
intent with which he acted. The defendants only defense was that his mothers
death was not intentional, but was the product of an emotional outburst.

The court instructed the jury about the elements of first-degree murder as well as the
elements of the lesser-included offenses of second-degree murder, reckless second-degree
murder, and manslaughter. For each offense, the court explained the essential elements the
State had to prove beyond a reasonable doubt.

With respect to the level of intent required for second-degree murder, the court
instructed the jury that the State had to prove that the defendant acted
"knowingly." The court told the jury that "[t]his means that the State must
prove that the defendant was aware that his acts would cause the prohibited result. The
State does not have to prove that the defendant specifically intended or desired a
particular result. What the State must prove is that the defendant was aware or knew that
his conduct would cause the result."

At the States request, and over the defendants objection, the court also
instructed the jury that because the defendant had not raised an insanity defense, it
could not consider whether, at the time of the victims death, "the defendant
suffered from a mental condition or mental illness that caused his actions." Nor
could it consider whether the defendant had a "mental condition or mental
illness" that prevented him from forming the intent to commit any of the offenses at
issue in the case, including second-degree murder. Specifically, the court told the jury
that it could not consider whether, at the time of death, the defendant suffered from a
"mental illness or mental condition" that:

(a) made him unable to form the intent to commit murder;

(b) prevented him from exercising his free will; or

(c) prevented him from appreciating the criminality of his conduct.

On the first full day of its deliberations, the jury asked, "To what extent may we
consider state of mind?" The court told the jury that "State
of Mind is one of the elements of the crimes I instructed you on," and referred
the jury to the pages in the instructions on which the elements of the crimes could be
found. Later that day, the jury asked the court, with respect to the elements of
second-degree murder, whether it had to find that the defendant was "aware" at
the time of the prohibited act in order to find that he possessed the requisite intent.
The court said, "yes."

The next day, the jury informed the court that it had "been at a virtual impasse
for several hours over the concept of awareness. Some of the jury think that the
accused must have been aware of the prohibited result of his action during the event. But
others in the jury think that the State has failed to prove beyond a reasonable doubt that
that is the case. Are we being too strict in our interpretation of the word
aware?"

The court responded that the jury was required to follow the instructions as given, and
referred it to the page containing the following admonitions: (1) "you may not
consider whether, at the time of [the victim]s death, the defendant suffered from a
mental condition or mental illness that caused his actions"; and (2) "you may
not consider whether, at the time of [the victim]s death, the defendant suffered
from a mental illness or mental condition that[ ]. . . made him unable to form the intent
to commit murder."

Less than an hour later, the jury asked whether the court would give it a legal
definition of the term "mental condition." The court responded that there was no
mental condition to consider because the law in this State is that the jury "may not
consider whether the defendant suffered from a mental condition."

Soon thereafter, the jury explained that it wanted the definition of mental condition
"so that [the jurors] can know whether or not we may consider the defendants
claim of not realizing what he was doing during the act. That is, does beingunaware
of what he was doing constitute a mental condition, and thus be a factor which we cannotconsider? Conversely, does being unaware of what he was doing constitute a stateofmind, and thus be something we must consider."

The court stated that it could be "of no further assistance" to the jury
other than to refer it to the courts previous answers and to the instruction on the
insanity defense. The court quoted its admonitions regarding the jurys obligation
not to consider "whether the defendant suffered from a mental condition or mental
illness" that caused his actions or prevented him from forming the requisite intent.

The jury then asked, "[s]ince we are not allowed to consider mental condition,
does this mean that the State does not have to prove that the defendant was aware
that his acts would cause the prohibited result," to which the court responded,
"no." Fifteen minutes after the court responded, the jury asked the court to
"please give [the jurors] something more than another reference to the instructions
that we have already considered exhaustively." The jury explained that it needed to
know the definition of "mental condition" so as to evaluate the evidence
regarding the defendants "possible thoughts, feelings, emotions, levels of
awareness and intentions."

The court informed the jury that "New Hampshire law presumes that at the time a
crime was committed, the defendant: (a) was aware of his actions; (b) was aware of the
criminality of those actions; and (c) was capable of determining right from wrong."
The jury then asked "if NH law presumes that at the time a crime was committed, the
defendant (a) was aware of his actions; (b) was aware of the criminality of those actions then
why is the state charged with proving he was aware of his actions and that those actions
would result in a prohibited act?" The court responded as follows:

As a general rule, the law presumes that all persons are aware of their actions. This
presumption may be rebutted by a defendant who pleads the defense of insanity. As I have
instructed you, that defense is inapplicable to this case. It is the law of this case that
the defendant suffered from no mental condition that would have impaired his capacity to
form the mental state of "awareness" at the time he acted. It is your job to
then determine whether or not the state has proven that the defendant was aware of the
result of his actions.

Less than an hour after this final instruction, the jury found the defendant guilty of
second-degree murder.

On appeal, the defendant argues that the courts jury instructions violated his
constitutional right to due process because they impermissibly shifted the burden of proof
to him on the element of intent. We analyze this claim first under the New Hampshire
Constitution, referencing decisions of the United States Supreme Court and other
jurisdictions only as analytic aids. SeeState v. Cannuli, 143 N.H. 149, 151
(1998). As both the State and Federal Constitutions require the State to prove each
element of the crime charged beyond a reasonable doubt, we hold that, in this context, the
State Constitution is at least as protective of the defendants rights as the Federal
Constitution. SeeState v. Baker, 120 N.H. 773, 777 (1980); In re Winship,
397 U.S. 358, 364 (1970). Accordingly, we do not engage in a separate federal analysis. SeeState v. Ball, 124 N.H. 226, 232 (1983).

An instruction that creates a mandatory presumption of criminal intent violates the due
process requirement that the State prove every element of a criminal charge beyond a
reasonable doubt. SeeSandstrom v. Montana, 442 U.S. 510, 520-24 (1979); State
v. OLeary, 128 N.H. 661, 668 (1986). The question before this court is whether
the challenged jury instruction created such a conclusive presumption.

We begin by looking at the challenged portions of the instructions. If the challenged
portions, considered in isolation, could reasonably have been understood to create a
mandatory presumption on the element of intent, we then consider them in the context of
the charge as a whole. Francis v. Franklin, 471 U.S. 307, 315 (1985); seeState
v. Parker, 142 N.H. 319, 324 (1997). "[W]hether a defendant has been accorded his
constitutional rights depends upon the way in which a reasonable juror could have
interpreted the instruction." Sandstrom, 442 U.S. at 514; seeState
v. Jones, 125 N.H. 490, 494 (1984); State v. Dingman, 144 N.H. 113, 115 (1999).

The defendant was convicted of second-degree murder, which requires proof that he
knowingly caused the death of another. See RSA 630:1-b (1996). Because the
defendant admitted to killing his mother, the only question before the jury was whether he
did so "knowingly." "A person acts knowingly with respect to conduct . . .
when he is aware that his conduct is of such nature." RSA 626:2, II(b) (1996).
"In other words, a defendant acts knowingly when he is aware that it is practically
certain that his conduct will cause a prohibited result." State v. Bergen, 141
N.H. 61, 63 (1996) (quotation omitted). Awareness is thus central to the concept of acting
"knowingly."

In its general charge to the jury and in its response to the jurys eight
questions, the court instructed the jury that: (1) second-degree murder requires proof
that "the defendant was aware that his acts would cause the prohibited result";
(2) New Hampshire law presumes "that all persons are aware of their actions";
(3) "[t]his presumption may be rebutted by a defendant who pleads the defense of
insanity"; (4) the insanity defense "is inapplicable to this case"; and (5)
"the defendant suffered from no mental condition that would have impaired his
capacity to form the mental state of awareness at the time he acted."

A reasonable juror could have interpreted these instructions to mean that the defendant
was presumptively aware that he was causing his mothers death, thus relieving the
State of its burden of proving this beyond a reasonable doubt. Although the court informed
the jury that the presumption was rebuttable, it also informed the jury that the defendant
could not rebut the presumption because he had failed to raise an insanity defense. Thus,
a reasonable juror could have interpreted these instructions as creating a mandatory
presumption that the defendant was aware that he was causing his mothers death.

The courts instructions are similar to those the Supreme Court held
unconstitutional in Sandstrom. In Sandstrom, the court ruled that an
instruction that "[t]he law presumes that a person intends the ordinary consequences
of his voluntary acts" created an impermissible conclusive presumption on the issue
of intent. Sandstrom, 442 U.S. at 515 (quotation omitted). As in Sandstrom,
the jurors in this case "were not told that they had a choice, or that they might
infer that conclusion; they were told only that the law presumed it. It is clear that a
reasonable juror could easily have viewed such an instruction as mandatory." Id.
"Standing alone, the challenged language undeniably created an unconstitutional
burden-shifting presumption with respect to the element of intent." Franklin,
471 U.S. at 318.

Our conclusion is not altered when we view the challenged language in the context of
the courts entire charge. The State argues that the courts final instruction
clarified that while the jury was to presume that the defendant was aware of his actions (i.e.,
that he was sane), it was to determine, on the basis of evidence, whether the State proved
that the defendant was aware of the result of his actions. We disagree.

Contrary to the States assertions, the law does not presume that individuals are
aware of their actions. Although the law presumes "sanity," seeNovosel
v. Helgemoe, 118 N.H. 115, 127 (1978), we have not defined it to mean, as a matter of
law, that a defendant is aware of his or her actions. We have held repeatedly that sanity
is a question of fact to be determined by the jury and that there is no test for
determining whether a defendant is insane. SeeState v. Cegelis, 138 N.H.
249, 255-56 (1994).

Moreover, although the final instruction told the jury that it was to determine, on the
basis of evidence, whether the State proved that the defendant was aware of the result of
his actions, it also told the jury that it was "the law of this case" that the
defendant "suffered from no mental condition that would have impaired his capacity to
form the mental state of awareness at the time he acted." A reasonable
juror could have interpreted this instruction to mean that it was "the law of this
case" that the defendant was aware of the results of his actions.

Because a reasonable juror could have understood the jury instructions to create a
mandatory presumption that shifted the burden to the defendant on the element of intent,
and because the charge read as a whole did not explain or cure this deficiency, we hold
that the charge violated the defendants right to due process. SeeFranklin,
471 U.S. at 325.

The State urges us to apply a harmless error analysis. An error of this magnitude
requires reversal of the defendants conviction and is not amenable to harmless error
analysis. SeeSullivan v. Louisiana, 508 U.S. 275, 278-82 (1993). The jury
in this case was instructed to presume the only element of the offense of
second-degree murder that was at issue  whether the defendant was aware of the
results of his conduct. The defendants only defense to this charge was that he was
not aware at the time of the murder that his actions were causing his mothers death.
A presumption that the defendant was "aware," as a matter of law, of the
consequences of his actions, eliminated his only defense. SeeFranklin, 471
U.S. at 325-26. Absent this presumption, we can only speculate what a reasonable jury
would have done. SeeSullivan, 508 U.S. at 281.

Even were we to apply a harmless error analysis, we would find that the error was not
harmless. The evidence that the defendant was aware of the results of his conduct was not
so overwhelming as to render the courts jury instructions harmless error. SeeFranklin, 471 U.S. at 325-26; Yates v. Evatt, 500 U.S. 391, 407-11 (1991).
Indeed, the defendant repeatedly testified that he was not aware that he was
causing his mothers death at the time of the murder.

The State argues that the trial courts instructions on the insanity defense were
"not only legally correct but also necessary under the circumstances" because
"of the defendants unrelenting presentation of a defense unavailable to [him]
either by the facts of the case or the law." We disagree.

The insanity defense applies to evidence "of a mental disease or defect
that deprives the defendant of the ability to form a specific intent." State v.
James, 140 N.H. 50, 52 (1995) (emphasis added); seeState v. Sylvia, 136
N.H. 428, 433 (1992). In this case, the defendant did not claim to have suffered from
either a mental disease or defect. Rather, he asserted that, at the time of the offense,
he was so upset that he did not act "knowingly." Under these circumstances,
there was no need for the court to have instructed the jury on the insanity defense. A
defendant may offer evidence as to whether he possessed the requisite mens rea for the
crimes charged without claiming to be insane. SeeState v. St. Laurent, 138
N.H. 492, 494 (1994). Where, as here, the crime charged requires proof that the defendant
acted "knowingly," the defendant need not assert an insanity defense before
offering evidence that he was not "practically certain" that his conduct would
cause a prohibited result. Bergen, 141 N.H. at 63 (quotation omitted). Just as
insanity and mens rea can co-exist, so too can sanity and the lack of mens rea co-exist. SeeNovosel, 118 N.H. at 123.